1. Before the court for determination is the Applicants’ Notice of Motion dated 21 st January 2026 made under Order 21 Rule 1B, Order 22 Rule 22 Order 40 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, section 1A, 1B & 3A of the Civil Procedure Act and Article 159(2)(a) & (d) of the Constitution. They seek inter alia extension of time and leave to lodge a Memorandum of Appeal out of time against the judgment and decree entered against them in Kithimiani MCCC No. E115 of 2022 and stay of execution pending the hearing and determination of the intended appeal.
2. The application is supported by grounds on its face and the supporting affidavit of the 2 nd Applicant sworn on 21 st January 2026 and it is opposed by the Respondent through the Grounds of Opposition dated 4 th January 2026. The parties have also supplemented their arguments by filing written submissions that I have considered together with the pleadings.
3. The principles governing leave to appeal out of time are trite and are now well settled. The successful applicant must demonstrate “good and sufficient cause” for not filing the appeal in time. In Thuita Mwangi v Kenya Airways Ltd [2003] KECA 201 (KLR) , the Court of Appeal while considering Rule 4 of the Court of Appeal Rules which is similar to section 79G of the Civil Procedure Act , that gives the court discretionary power to admit an appeal out of time, reiterated its decision in Mutiso v Mwangi [1997] KLR 630 as follows:
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that generally the matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of delay ; secondly, the reason for the delay ; thirdly (possibly) the chances of appeal succeeding if the application is granted ; and fourthly, the degree of prejudice to the Respondent of the application is granted .”
4. The Supreme Court, in County Executive of Kisumu v County Government of Kisumu & 8 others [2017] KESC 16 (KLR) held that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. It reiterated the principles it had earlier delineated in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission, Wilfred Rotich Lesan, Robert Siolei County Returning Officer Bomet County, Kennedy Ochayo,Wilfred Wainaina, Patrick Wanyama, Mark Manzo & Abdikadir Sheikh [2014] KESC 12 (KLR) that a court, in its determination of such an application is guided by the following factors:
1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
5. Whether there will be any prejudice suffered by the respondents if the extension is granted;
6. Whether the application has been brought without undue delay; and
7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
5. It is common ground that judgment in the subordinate court was delivered on 6 th June 2024 and ordinarily, the Applicants ought to have filed the appeal within 30 days, that is by 6 th July 2024 latest. However, the present application was filed on 23 rd January 2026 which amounts to a delay of approximately 1 year and 7 months, say 19 months. The explanation proffered by the Applicants in their pleadings and submissions is that there was a delay in obtaining a copy of the judgment and communicating with the Applicants about the same, the Applicants were late in giving instructions to their advocates, time had already lapsed by the time the Applicants decided to file an appeal, there were financial difficulties on the part of the Applicants and that there was a delay by their advocates in advising the Appellants.
6. Whereas the court in the past has held that a delay of around 6 months is not inordinate (see Sagoo v Bhari [1990] KLR 459), I find that a delay of 19 months is inordinate and inexcusable and the explanations offered by the Applicants vague. No dates are given as to when the judgment was obtained from the subordinate court, when counsel advised the Applicants or when instructions were eventually given. The Applicants do not state when they applied for the judgment, when it was obtained or why it took so long. The judgment was delivered on 6 th June 2024 and a copy would ordinarily be available within days or weeks, not months and even if there was a delay, one would expect the Applicants to obtain a Certificate of Delay from the lower court that would justify the delay (see Maclean & another v Kiago & another [2025] KEHC 3572 (KLR)]
7. Further, the excuse of “financial difficulties" was only raised for the first time in the written submissions and is not deposed to in the supporting affidavit and it is also unsupported by any evidence. This makes the court conclude that this was nothing more than an afterthought. I also find that the Applicants stating that they were late in giving instructions to their advocates is an admission of their own laxity. The law is clear that a party cannot benefit from its own indolence and the law cannot be bent to suit individuals' laxity.
8. I also find that the explanation that the Applicants brought the instant application as soon as their advocates received instructions does not explain the delay between June 2024 and January 2026. It only explains the period after instructions were given, which is not the period in question. The Respondent is also likely to be prejudiced by this delay given that he has filed a declaratory suit and he has been kept out of the fruits of a lawfully obtained judgment for over 1 year and 7 months. On the appeal’s chances of success, I note that from the Memorandum of Appeal annexed, the Applicants intended appeal is on quantum only. The trial court awarded Kshs. 1,000,000.00 for fractures of the tibia and fibula, relying on authorities such as Mt. Longonot Medical Services Limited & another v Andason Kitonyo Kinyenze [2017] KEHC 3896 (KLR) that awarded a similar amount for double fractures of the tibia and fibula. In my view, the award appears to be within the range of comparable awards, which weakens the Applicants’ argument that the appeal has high chances of success
9. In summary, I find that the delay of 19 months is inordinate and the explanations offered are vague, unsupported by evidence and are insufficient in law. The Applicants have failed to discharge the burden of laying a basis to the satisfaction of the court, as required in Salat(supra) . The application is an afterthought and the balance of justice favours the Respondent, who has been kept out of the fruits of a lawful judgment for an unreasonable period.
10. In the foregoing, the court exercises its discretion and dismisses the application dated 21 st January 2026
DATED SIGNED AND DELIVERED virtually this 14 TH DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. N/A for the Applicant
2. Mr. Gichimu for the Respondent
3. Abdisalan- Court Assistant
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2. The application is supported by grounds on its face and the supporting affidavit of the 2 nd Applicant sworn on 21 st January 2026 and it is opposed by the Respondent through the Grounds of Opposition dated 4 th January 2026. The parties have also supplemented their arguments by filing written submissions that I have considered together with the pleadings.
3. The principles governing leave to appeal out of time are trite and are now well settled. The successful applicant must demonstrate “good and sufficient cause” for not filing the appeal in time. In Thuita Mwangi v Kenya Airways Ltd [2003] KECA 201 (KLR) , the Court of Appeal while considering Rule 4 of the Court of Appeal Rules which is similar to section 79G of the Civil Procedure Act , that gives the court discretionary power to admit an appeal out of time, reiterated its decision in Mutiso v Mwangi [1997] KLR 630 as follows:
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that generally the matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of delay ; secondly, the reason for the delay ; thirdly (possibly) the chances of appeal succeeding if the application is granted ; and fourthly, the degree of prejudice to the Respondent of the application is granted .”
4. The Supreme Court, in County Executive of Kisumu v County Government of Kisumu & 8 others [2017] KESC 16 (KLR) held that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. It reiterated the principles it had earlier delineated in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission, Wilfred Rotich Lesan, Robert Siolei County Returning Officer Bomet County, Kennedy Ochayo,Wilfred Wainaina, Patrick Wanyama, Mark Manzo & Abdikadir Sheikh [2014] KESC 12 (KLR) that a court, in its determination of such an application is guided by the following factors:
1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
5. Whether there will be any prejudice suffered by the respondents if the extension is granted;
6. Whether the application has been brought without undue delay; and
7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.
5. It is common ground that judgment in the subordinate court was delivered on 6 th June 2024 and ordinarily, the Applicants ought to have filed the appeal within 30 days, that is by 6 th July 2024 latest. However, the present application was filed on 23 rd January 2026 which amounts to a delay of approximately 1 year and 7 months, say 19 months. The explanation proffered by the Applicants in their pleadings and submissions is that there was a delay in obtaining a copy of the judgment and communicating with the Applicants about the same, the Applicants were late in giving instructions to their advocates, time had already lapsed by the time the Applicants decided to file an appeal, there were financial difficulties on the part of the Applicants and that there was a delay by their advocates in advising the Appellants.
6. Whereas the court in the past has held that a delay of around 6 months is not inordinate (see Sagoo v Bhari [1990] KLR 459), I find that a delay of 19 months is inordinate and inexcusable and the explanations offered by the Applicants vague. No dates are given as to when the judgment was obtained from the subordinate court, when counsel advised the Applicants or when instructions were eventually given. The Applicants do not state when they applied for the judgment, when it was obtained or why it took so long. The judgment was delivered on 6 th June 2024 and a copy would ordinarily be available within days or weeks, not months and even if there was a delay, one would expect the Applicants to obtain a Certificate of Delay from the lower court that would justify the delay (see Maclean & another v Kiago & another [2025] KEHC 3572 (KLR)]
7. Further, the excuse of “financial difficulties" was only raised for the first time in the written submissions and is not deposed to in the supporting affidavit and it is also unsupported by any evidence. This makes the court conclude that this was nothing more than an afterthought. I also find that the Applicants stating that they were late in giving instructions to their advocates is an admission of their own laxity. The law is clear that a party cannot benefit from its own indolence and the law cannot be bent to suit individuals' laxity.
8. I also find that the explanation that the Applicants brought the instant application as soon as their advocates received instructions does not explain the delay between June 2024 and January 2026. It only explains the period after instructions were given, which is not the period in question. The Respondent is also likely to be prejudiced by this delay given that he has filed a declaratory suit and he has been kept out of the fruits of a lawfully obtained judgment for over 1 year and 7 months. On the appeal’s chances of success, I note that from the Memorandum of Appeal annexed, the Applicants intended appeal is on quantum only. The trial court awarded Kshs. 1,000,000.00 for fractures of the tibia and fibula, relying on authorities such as Mt. Longonot Medical Services Limited & another v Andason Kitonyo Kinyenze [2017] KEHC 3896 (KLR) that awarded a similar amount for double fractures of the tibia and fibula. In my view, the award appears to be within the range of comparable awards, which weakens the Applicants’ argument that the appeal has high chances of success
9. In summary, I find that the delay of 19 months is inordinate and the explanations offered are vague, unsupported by evidence and are insufficient in law. The Applicants have failed to discharge the burden of laying a basis to the satisfaction of the court, as required in Salat(supra) . The application is an afterthought and the balance of justice favours the Respondent, who has been kept out of the fruits of a lawful judgment for an unreasonable period.
10. In the foregoing, the court exercises its discretion and dismisses the application dated 21 st January 2026
DATED SIGNED AND DELIVERED virtually this 14 TH DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. N/A for the Applicant
2. Mr. Gichimu for the Respondent
3. Abdisalan- Court Assistant
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